United States: Significant 2015 Decisions Affecting Private M&A: Part 3

The following compilation is Kaye Scholer's second annual review of significant Delaware court decisions relating to private merger and acquisition transactions and disputes. The decisions here, all issued in 2015, are organized in the following sections: proxy contests and other disputes involving the Board; fraud claims in M&A transactions; deal mechanics; employee and options matters; and decisions interpreting Delaware's recently adopted statutes governing ratification and validation of corporate acts.

This review is split into a three part-series. Part three includes decisions involving employee and options matters, and decisions interpreting Delaware's recently adopted statutes governing ratification and validation of corporate acts.

Employee and Options Matters

1. Ascension Insurance Holdings LLC v. Underwood, C.A. 9897-VCG (Del. Ch. Jan. 28, 2015)

A Delaware choice of law for an employee noncompete that was entered into several months after an asset purchase agreement became effective was unenforceable given California public policy against enforcement of noncompetes against California residents employed and seeking to compete largely in California.

This decision addressed a request for preliminary injunction against the defendant and his current employer from breaching a covenant not to compete entered into by the defendant as part of an employee investment agreement (EIA) that was executed several months after an asset purchase agreement (the APA). The APA and a contemporaneous employment agreement contained five-year noncompetes. The noncompete in the subsequent EIA extended for a period of two years after defendant's termination of employment. The EIA was between a California-resident employee and a Delaware limited liability company (the LLC) that had its principal place of business in California, and contained Delaware venue and choice-of-law provisions.

The Delaware Court of Chancery first noted California's statutory prohibition of noncompetes under Cal. Bus. & Prof. Code §16600, which contains an exception relating to the protection of goodwill where the noncompete is part of a sale of equity (or assets). The court then noted Delaware's policy favoring the right to freedom of contract, and that Delaware follows the Restatement (Second) of Conflict of Laws (the Restatement). According to the court, the Restatement generally favors the parties' choice of law, except where, absent a choice-of-law provision, the contract would be governed by the law of a state that has a public policy under which a contractual provision would be void or limited. Given that the defendant was a California resident, the LLC had its principal place of business in California, and the EIA was negotiated in California and involved a noncompete that was limited almost completely to areas within California, the court concluded that absent the choice-of-law provision, California law would apply.

The court then considered whether enforcement of the covenant would conflict with a "fundamental policy" of California and, if so, whether California has a materially greater interest in the issue than Delaware. The court first considered the plaintiff's argument that the exception under the California statute relating to the sale of assets applied. The court noted that while the EIA was contemplated at the time of the APA, the parties had not discussed including a noncompete in the EIA. The fact that the APA and a contemporaneous employment agreement signed by the defendant contained five-year noncompetes indicated that the noncompete in the EIA could not have been relied on as part of the asset purchase. The court also rejected the plaintiff's argument that the decision in Fillpoint LLC v. Maas, 146 Cal. Rptr. 3d 194 (Cal. Ct. App. 2012), showed that enforceability did not require that the EIA have been signed contemporaneously with the APA.

The Fillpoint case involved the enforceability of a noncompete in an employment agreement that was signed one month after a stock purchase agreement. The stock purchase agreement contained a three-year noncompete, and the employment agreement contained a noncompete that extended for one-year post-termination. The Ascension court noted that while the Fillpoint court read the stock purchase agreement and the employment agreement together, the Fillpoint court held that the noncompete in the employment agreement did not fall within the exception to the California noncompete statute. Noting that Fillpoint therefore did not support the plaintiff's argument, the Ascension court found that the noncompete provisions of the EIA would violate a fundamental public policy of California. In balancing the interests of the two states, the court held that "California's specific interest is materially greater than Delaware's general interest in the sanctity of a contract that has no relationship to this state."

The decision serves as a reminder that noncompetes tied to, and that extend beyond, the term of employment are very unlikely to be enforceable in California, even if entered into around the time of the sale of a business. Moreover, parties should not assume that they can avoid California's public policy disfavoring noncompetes simply by contractually designating the law and venue of another state.

2. Calma v. Templeton, C.A. No. 9579-CB (Del. Ch. April 30, 2015)

This decision highlights the importance of designing option plans with director-specific limits and taking care in the selection of peer group members.

The case arose when a stockholder challenged a board decision to award restricted stock units (RSUs) to the nonemployee directors of Citrix Systems Inc. These grants were awarded to the nonemployee directors under a compensation plan that also covered employees, officers, consultants and advisers and it was approved by a majority of disinterested stockholders. The only compensation limits of the plan were that no beneficiary could receive more than 1 million RSUs per calendar year, which at the time could total as much as $55 million.

The compensation committee had approved grants to all nonemployee directors, including the members of that committee, and therefore the business judgment rule did not apply. Stockholder ratification is an affirmative defense to the alternate standard of entire fairness, and leads to waste being the standard of review. However, the court ruled that the prior approval by stockholders of the compensation plan did not constitute ratification of the board's later grant of RSUs to the nonemployee directors. The stockholders' approval was merely a generic approval of a compensation plan covering multiple and varied classes of beneficiaries and the stockholders were not asked to ratify any decision "bearing specifically on the magnitude of compensation to be paid to its nonemployee directors." Because stockholders had not been asked to ratify the specific RSUs granted to the nonemployee directors, or to approve any sublimit in the plan relating to compensation payable to such directors, the court concluded the stockholders could not be said to have ratified the grants.

Absent stockholder ratification, the RSU grants were self-dealing transactions, subject to review under an entire fairness standard. Entire fairness requires a showing of fair price and fair dealing. With respect to fair price, the parties framed the issue as whether the grants were in line with a peer group of companies, and the court held that the plaintiff had raised "meaningful questions" as to the appropriateness of the composition of the peer group employed by the board for this compensation decision, and therefore denied the motion to dismiss claims of breach of the duty of loyalty and unjust enrichment.

3. Fox v. CDX Holdings Inc., C.A. No. 8031-VCL (Del. Ch. July 28, 2015)

The decision highlights the importance of following the valuation and other terms of stock option plans when cashing out options in a merger, including whether a portion of option proceeds can be withheld to fund a deal escrow.

This case involved a class action brought by an option holder who challenged the consideration option holders received for their options in a merger. The option holders held options in a privately held Delaware corporation, Caris Life Sciences Inc. (the company). The company operated three business units: Caris Diagnostics, TargetNow and Carisome. In order to realize a partial exit for stockholders and to generate funding for TargetNow and Carisome, the company engaged in a spin/merger transaction that involved spinning off TargetNow and Carisome to its stockholders and having the resulting business (the AP Business) then enter into a cash merger with a subsidiary of a third party, Miraca Holdings Inc., for aggregate proceeds of $725 million.

In connection with the merger, the option holders were cashed out based on a price of $5.07 per share, which represented $4.46 per share for the value of the AP Business acquired by Miraca in the merger, and 61 cents per share for the value of the two spun-off businesses. Approximately 8 percent of the option proceeds were withheld and contributed to the deal escrow. The plaintiff brought a class action for damages based on breach of the terms of the company's stock option plan in three ways: (1) failure by the board of directors of the company to determine the fair market value of a share of company common stock and to adjust the options for the spinoff, (2) the valuation work performed was not done in good faith and was arbitrary and capricious, and (3) the option plan did not allow the company to escrow a portion of the option consideration.

Following a trial, the Court of Chancery found for the plaintiff with respect to its claims based on breach of the stock plan and awarded the class damages of $16,260,332.77. The plaintiff also advanced a claim for breach of the implied covenant of good faith and fair dealing, which the court did not reach, given its decision on the breach of contract claim.

The company was 70.4 percent owned by its founder, David Halbert, and 26.7 percent owned by a private equity fund, JH Whitney VI LP (Fund VI). The remaining 2.9 percent of the fully diluted equity of the company was held by option holders. Under the terms of the plan, option holders were entitled to receive in the merger an amount per share underlying their options equal to the excess of the "fair market value" of each share of company common stock over the option strike price. The plan provided that the fair market value was to be determined by the plan administrator, and that the administrator was required to adjust the options to take account of the spinoff. The board functioned as the administrator.

The spin/merger structure was a way to achieve a tax-efficient sale of the AP Business. However, it presented one large challenge. In order for the spinoff to be accomplished without triggering a corporate-level tax, the fair market value of the spun-off businesses could not exceed their respective tax bases. This was a sensitive issue in the negotiations with Miraca, and Miraca insisted that the spun-off businesses (owned by Halbert and Fund VI) retain responsibility for any such tax. Halbert therefore had a significant incentive to ensure that the fair market value of the spun-off businesses be low. This, in turn, would result in a low valuation for the options, because that value incorporated an upward adjustment based on the value of the spun-off businesses.

Evidence at trial showed that the valuation of the spun-off businesses, and the resulting value of the options, was determined by Gerard Martino, the company's executive vice president and chief financial officer, with sign-off from Halbert. Given that the fair market value of the options was not determined by the board, as was required by the terms of the plan, the court found for the plaintiff with respect to the first contention.

The valuation was based on an intercompany tax transfer analysis (as opposed to a fair market value analysis) prepared by the company's tax adviser, using projections that Martino had manipulated downwards. At the insistence of Miraca, a second firm was retained to do an analysis. But the second firm understood its mandate as being to rubber-stamp the first firm's analysis. The $65 million valuation of the spun-off entities was also significantly lower than recent estimates used for other purposes, such as that prepared by an investment bank in the sale process that resulted in the sale to Miraca, estimates derived from bidders' indications of interest in the sale process, internal estimates of the Fund VI, and 409A valuations. Accordingly, the court found that the valuation work was not determined in good faith and was arbitrary and capricious.

With regard to the plaintiff's third contention, the court noted that unlike for shares, Section 251(b) of the Delaware General Corporation Law (DGCL) does not authorize the conversion of options in a merger. Options are instead rights governed by DGCL §157, and are governed by the terms of their contract, in this case the stock plan. The court noted that "the Plan gave the Board discretion as to whether to cancel the options in connection with the Merger, but if it did, then the option holders were entitled to receive 'the difference between the Fair Market Value and the exercise price for all shares of Common Stock subject to exercise.' The Plan did not permit an escrow holdback." As a result, the company breached the terms of the plan by withholding a portion of the option proceeds to fund the escrow.

The decision illustrates a failure of process by the company and its board when cashing out options in a merger. It is a reminder of the risks of failing to follow an option plan's terms, and of backing into a predetermined valuation as opposed to following a principled analysis. It also serves as a caution to drafters to ensure that option plans are drafted flexibly enough to accommodate escrows in sale transactions.

Ratification of Corporate Acts

1. In re Numoda Shareholders Litigation, C.A. No. 9163-VCN (Jan. 30, 2015), aff'd, (Del. Oct. 22, 2015); In re CertiSign Holding, C.A. No. 9989-VCN (Aug. 31, 2015)

Delaware courts provided important guidance as to the applicability and scope of Delaware's new statutory provisions regarding ratification and validation of corporate acts.

In 2014, two new provisions, Sections 204 and 205, were adopted to the Delaware General Corporation Law (DGCL). These provisions permit, among other things, boards to ratify, and the Court of Chancery to validate, prior corporate acts. The provisions were the subject of two Delaware court decisions in 2015.

Numoda was a post-trial decision of the Court of Chancery (later affirmed by the Delaware Supreme Court) that involved a dispute about the capital structures of two privately held corporations. The Court of Chancery in Numoda considered the validity of several acts that generally lacked the requisite corporate formalities, such as noticing board meetings, taking of minutes and issuing accurate stock certificates. As a preliminary matter, the court considered the extent of the powers conferred under Sections 204 and 205. The court noted that Section 205 allowed the court to declare that a defective corporate act is effective as of the time of the act, and make such related orders as the court deems proper under the circumstances. The court noted that Section 205(d) provides that in deciding whether to exercise its authority, a court may consider:

  1. Whether the defective corporate act was originally approved or effectuated with the belief that the approval or effectuation was in compliance with the provisions of this title, the certificate of incorporation or bylaws of the corporation;
  2. Whether the corporation and board of directors has treated the defective corporate act as a valid act or transaction and whether any person has acted in reliance on the public record that such defective corporate act was valid;
  3. Whether any person will be or was harmed by the ratification or validation of the defective corporate act, excluding any harm that would have resulted if the defective corporate act had been valid when approved or effectuated;
  4. Whether any person will be harmed by the failure to ratify or validate the defective corporate act; and
  5. Any other factors or considerations the Court deems just and equitable.

The court noted that the legislative synopsis for Section 204 indicates that Section 204 is intended as a safe harbor to fix void or voidable acts, and is intended to overturn the holdings in cases where, for example, many of the indicia of a valid stock issuance or stock split were present, but the courts refused to give effect to them because of the parties' failure to scrupulously follow the statutory requirements. The court noted that the language of Section 205 did not give the court clear guidance as to the scope of its remedial power, but the scope could not be unlimited. The court noted that there must first be some underlying "corporate act," and observed:

the legislation's definition of 'defective corporate act' anticipated that a corporate act is an act within a corporation's power and 'purportedly taken by or on behalf of the corporation.' There does not appear to be a separate statutory definition of a 'corporate act,' ... However, there must be a difference between corporate acts and informal intentions or discussions. Our law would fall into disarray if it recognized, for example, every conversational agreement of two of three directors as a corporate act. Corporate acts are driven by board meetings, at which directors make formal decisions. The Court looks to organizational documents, official minutes, duly adopted resolutions, and a stock ledger, for example, for evidence of corporate acts ... The Court does not now draw a specific limiting bound on its powers under Section 205, but it looks for evidence of a bona fide effort bearing resemblance to a corporate act but for some defect that made it void or voidable.

The court therefore employed a two-part test: first, there must be an identifiable corporate act, and then the court must consider the five factors noted above in determining whether to validate the corporate act.

With regard to board approvals for some of the stock issuances in dispute, the court noted that stock certificates had been issued (albeit with alleged defects), there were unsigned board minutes supporting an issuance, the board of directors had attempted to ratify the issuances, and the parties had acted as though the issuances were valid. The court held that this was sufficient proof that the underlying board approvals constituted corporate acts. In determining whether to validate the corporate acts, the court noted that the second, fourth and fifth factors listed above were the most important. The parties had operated for years as though the issuances were valid, one of the parties could lose a significant voting interest absent validation, the board members had purported to ratify the issuances, and the relevant stock was no longer in dispute. Thus, the court held that the board approvals for the stock issuances were valid.

In contrast, with regard to another issuance, the court held that the purported holder of the stock had not been able to establish when the board approved the issuance, and thus there was no corporate act to validate. With regard to a third issuance, the court found that there was a corporate act because two of the directors had met with an intent to discuss board business, including the grant of the applicable shares. The court then validated the board approval for this third issuance under the five-factor test, noting that prior to the litigation, the parties accepted a capital structure that incorporated the shares, the purported holders relied on the issuance, and one of the holders would be harmed if the issuance were not validated. The court also considered other issuances, including a purported spinoff of a subsidiary corporation, under the two-part test.

CertiSign was a Delaware Court of Chancery action brought by CertiSign Holding Inc. (CHI) and another person pursuant to Section 205, seeking an order declaring that certain shares of putative stock were valid, and approving a corresponding stock ledger. Shortly after CHI's formation in 2005, the initial board of directors approved an amendment and restatement of CHI's original charter, which authorized several classes and series of stock. CHI then issued the stock to various parties in two transactions. However, the amended and restated charter was not filed with the Delaware secretary of state until a few days after these issuances. When the error was discovered in 2012, CHI sought to take remedial steps, which would have required approval by the current directors and two of the original board members. One of the original board members, Sergio Kulikovsky, refused to assist. As a result, CHI filed the Chancery Court action. Kulikovsky intervened in the court proceedings and filed a corresponding counterpetition. Kulikovsky acknowledged that CHI would ultimately obtain relief, but contended that it would not be fair and equitable to grant CHI's requested relief without also determining the validity of other securities, some of which were held by him. CHI responded that the relief sought by Kulikovsky was subject to factual disputes that would require extended proceedings.

The court noted that CHI's petition appeared to be tailor-made for Section 205 relief, given in part that all stockholders agreed that it arose from a ministerial error and all record stockholders signed written consents supporting it. In objecting to the petition, Kulikovsky relied on Section 205(d), which requires the court to consider "[w]hether any person would be harmed or was harmed by the ratification or validation of the defective corporate act, excluding any harm that would have resulted if the defective corporate act had been valid when approved or effectuated."

Kulikovsy claimed that he would be harmed if the court did not also validate options awarded to him, because he would be unable to exercise the options and obtain shareholder rights, without which petitioners would be able to take whatever action they wanted without considering his rights as a shareholder. The petitioners responded that such harm could not prevent entry of relief because the court was prohibited from considering "any harm that would have resulted if the defective corporate act had been valid when approved or effectuated." The court ruled that Kulikovsky had not identified any persuasive reason why relief should not be granted, and granted petitioners' motion for partial judgment on the pleadings.

The Numoda and CertiSign decisions provide important guidance as to the type of actions to which Section 205 applies and the circumstances under which Delaware courts will grant relief. In determining whether to validate prior acts under Section 205, courts will first look for evidence of a "corporate act," through documentation such as organizational documents, official minutes, duly adopted resolutions, and a stock ledger, and through actions of the parties. Courts draw a distinction between informal intentions or discussions and corporate acts. Thus Section 205 should be viewed as a tool for fixing ministerial errors and not as a backdating mechanism. Many of the same types of evidence used to show the existence of a corporate act are also relevant to the five-factor test used by courts under Section 205(d) to determine whether to validate the act. However, opponents of the validation cannot bootstrap objections by claiming a harm that would have resulted if the defective corporate act had been valid when approved.

This is part three of a three-part series that originally appeared in Law360 on January 13, 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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